Plаintiff prosecutes its writ of error in this case to reverse the order of the circuit court quashing the writ of capias ad respondendum by which the suit was
“ Which apples, barrels, baskets, and head-liners were wrongfully converted to the use of said Charles E. Allgeo, doing business as C. E. Allgeo & Co. (7) Deponent further says that said defendant, Charles E. Allgeo, told deponent, on or about November 15, 1909, that he did not then have in his possession or under his control the apples, barrels, head-liners, and baskets belonging to said plaintiff, and that they had bеen disposed of to other parties, and he had received the proceeds thereof, but he did not then have the moneys to reimburse said plaintiff for the goods so disposed of by him, and said defendant then and there admitted to deponent that the amount due said plaintiff for the goods so disposed of by defendant amounted to the said sum of four hundred nine and-fifo dollars ($409.41). Deponent further says that said defеndant, Charles E. Allgeo, with intent to defraud said plaintiff, has secretly converted to his own use the apples, barrels, head-liners, and baskеts belonging to said plaintiff, and the profits arising therefrom, and has sold said apples, barrels, baskets, and head-liners, and of which said sales said defendant has given plaintiff no information and from which it has received no returns, and that said defendant now refuses to accоunt to, or to pay, said plaintiff for the goods*387 belonging to it and converted to the use of said defendant, as hereinbefore stated.”
Plaintiff’s attorney also made an affidavit stating from personal inspection of said railway boobs and records the cars shipped, and that defendant admitted that he owed said plaintiff the amount mentioned in the affidavit, namely, $409.41, and that the same was due for goоds belonging to said plaintiff which had been disposed of by said defendant, that he did not then have the proceeds from the sale of such goods, although such proceeds have been received by him.
We are of the opinion that the court did not err in quashing the cаpias feature of the writ. By the terms of the agreement, defendant had a lawful right to sell the property with the consent of the plаintiff. ' There is no allegation in the affidavits that the property was disposed of without the consent of the plaintiff unless by the allegatiоn of a fraudulent conversion or the statement in plaintiff’s affidavit:
“And that said C. E. Allgeo & Co., and any one in behalf of said C. E. Allgeo & Co., has not notified or informed said plaintiff, or any one in its behalf, in regаrd to any other or further purchase, sales, or shipments of apples, other than above enumerated, although the recоrds and boobs of the station agent of the Pere Marquette Railroad Company, at Clarbsville aforesaid, which this deponent pеrsonally examined, show,” etc.
The allegations as to conversion are mere conclusions and the allegation as to infоrmation as in the concluding paragraph of the affidavit naturally refers to the concluding clause of the agreement, “to infоrm said plaintiff whenever a sale of apples was made,” etc. They are not sufficient allegations of want of consent. Conrad v. Van Buren Circuit Judge,
Among the exceptions to the order is the following:
“ (7) Because said order is a final order by which plaintiff is deprived of its right to proceed against plaintiff on the summons clause of said writ.”
“(13) The court erred in making the order quashing said writ a final order, dismissing said cause.”
We think this assignment is well founded, and that the right to proceed on the summons clause of the writ should have been permitted by the order.
As modified in this respect, the order is affirmed, without costs to either party.